Wednesday, August 8, 2012

Porn Testing Wars 2012: Manwin Clarifies Their Stance Against Talent Testing Services; Reinforces Performer Testing Program Pool

Well...the ongoing war of porn performer testing is continuing to get freakier by the day.

Remember that it was reported that a compromise was reached between the porn conglomerate Manwin, the Free Speech Coalition, and independent performer testing comp Talent Testing Services, where TTS results would be allowed into the database being set up by the FSC's Adult Performer Health and Safety Services (APHSS) to monitor test results?

It seems as though the compromise hasn't eased the strife between the two camps, because earlier this week, Manwin announced that it was reneging on its promise to incorporate TTS results....for now, at least.

Apparently, TTS supporters at their latest meeting weren't too satisfied with the terms of what was proposed, and wanted to keep their independence far, far away from Manwin and the FSC, whom offers their own testing through Cutting Edge Testing. Plus, renegade agents such as ATMLA's Shy Love were still pushing the same beliefs that Manwin was simply attempting a shakedown of peformers for FSC, and that allowing CET to be the exclusive agency for testing was simply an attempt to monopolize performer testing at TTS' expense.

So, yesterday, Manwin decided that they couldn't wait much longer, and gave TTS the boot.

Here's their statement, as reposted to XBiz.com:

Further to an announcement made on July 10, 2012, and after much consideration, Manwin has changed its stance with regards to Talent Testing Services. As previously announced, and as of July 1st, Manwin abides by new health standards and procedures. 

The requirements oblige adult entertainers, performing in scenes commissioned for Manwin brands, to provide health tests that are no older than 15 days.

The health tests must be FDA approved for HIV testing, namely the HIV-1 Aptima RNA Qualitive Assay, and its results must appear in the APHSS database. 

Manwin agrees with the APHSS standards and protocols, because they suit industry needs. In addition, Manwin is comfortable working with approved testing services, with procedures and protocols Manwin has reviewed and supported, as is the case with APHSS approved testing facilities.

Furthermore, Manwin requires the testing services to provide the assistance of a full-time doctor on staff, so that the patients who request it can get their tests analyzed and administered, while also getting the care they need in case of a positive test. 

Due to the reasons stated above, at this time, Manwin will not accept STI test results originating from TTS. However, Manwin hopes to continue discussions with TTS, to come to an agreement that will allow them to work together. 

Though TTS is not part of the APHSS program, APHSS and TTS agreed on terms which allowed TTS to provide performer test results to the APHSS information bank, without joining the program. Manwin feels that this is a great step forward.

For now, and until an agreement can be reached, performers will not be able to submit test results from TTS in order to shoot for a Manwin owned brand. 

With regards to the Performer Subsidy Fund, performers may still be reimbursed for partial costs of tests done at TTS, if TTS continues to submit test results to the APHSS program. 

The PSF was conceived by Manwin, and administered by the Free Speech Coalition. Through the Fund, performers may receive a monthly subsidy to help with STI testing costs.
Notice the not quite so subtle hardball being played here: Manwin is saying that if TTS doesn't get their act together and cede to the protocols of the APHSS, then not only will their tests not get sanctioned by any Manwin product, but their performers won't get compensated for their tests, either.

However, it should also be noted, as APHSS stated in a followup article, that performers whom are already members of APHSS who use Talent Testing for their tests will have their tests accepted in their database as long as TTS continues to submit them, and thusly will still have their tests accepted by Manwin...at least, under the compromise agreement thus signed. Here's APHSS's statement:
In a statement, APHSS said: "Manwin has stated that it is their policy to subsidize performers that test at TTS, as long as those performers are signed up for the APHSS program and TTS has submitted data on those performers. APHSS intends to administer the subsidies as planned under this policy."

The Performer Subsidy Fund will be funded by Manwin through the rest of the calendar year.

APHSS officials further emphasized that the compromise with TTS that allows its data to be automatically entered into the APHSS database is "important to ensuring the APHSS database is a complete and comprehensive resource of information for the content production industry."

"As long as TTS continues to submit data to the APHSS database, the data will be updated in our system. That said, for producers that will continue to accept TTS test results, they should be able to verify performer work availability through APHSS."
It's going to interesting to see what TTS's next move will be in this..especially with the pressure from agents like Shy Love who want to maintain their independence from FSC.

The other interesting discussion is in what is motivating Manwin in all of this. Some say that this is merely part of their global plan to take over porn in the wake of the recession; others say that it's a cover for the FSC to maintain their monopoly over performer testing (and thusly for Diane Duke to get paid).

A far less underhanded conspiracy theory comes from lawyer Michael Fattorosi, whom has now revived his long standing adult legal blog, Adult Biz View, in the wake of the recent events. Fattorosi, who blogs and tweets as well under the handle @Pornlaw, thinks that what is really motivating Manwin is the thinly veiled threat of possible legal and criminal action over whether forcing performer testing at the latter's expense violates state labor laws.
Many people within the industry pointed out that this was a very generous, albeit suspicious offer from Manwin. There is a general opinion within the industry that Manwin, through their tubesites, was a direct contributor to the economic downfall of porn production. Why now would they voluntarily come forward and support performers to reimburse testing costs ? Some people even opined that they believed this was Manwin’s attempt to take over medical testing procedures in the industry.

However I think the answer can be found in California Labor Code section 222.5 which reads in relevant part;

“No person shall withhold or deduct from the compensation of any employee, or require any prospective employee or applicant for employment to pay, any fee for, or cost of, any pre-employment medical or physical examination taken as a condition of employment, nor shall any person withhold or deduct from the compensation of any employee, or require any employee to pay any fee for, or costs of, medical or physical examinations required by any law or regulation of federal, state or local governments or agencies thereof.”

In short, employees in California cannot be made to pay for pre-employment medical testing, which is exactly what the STD testing is within the adult content production business – a pre-employment test. Without a clean test no production company will or should hire a performer to perform in an adult production.
But hold up, aren't porn performers considered more like "independent contractors" rather than employees?? And thusly, they are immune from such regulations??  Not so fast, sayeth Michael:
I realize that many performers in adult do not and refuse to consider themselves employees. Rather they wish, for whatever reason, to be called independent contractors. I can assure anyone reading this article that performers, for purposes of worker safety laws, are indeed employees and not independent contractors. Perhaps for tax purposes they may be independent contractors. It is possible to be an employee for worker safety laws but yet be an independent contractor for tax purposes.

Further, on January 1, 2012 additional laws when into effect in California making the “willfull misclassification” of employees as independent contractors even more dangerous for employers. Labor Code Section 226.8 imposes significant penalties ranging from a minimum of $5,000 to $25,000 for “each violation.” The civil penalties for one misclassified individual could be tens of thousands of dollars depending on the interpretation of “each violation” and the penalty imposed. Obviously, if Manwin does not take remedial steps to comply with California law in regards to the classification of employees they may face significant penalties as well as potential lawsuits under California’s Private Attorney General Act, which allows individuals to file lawsuits to enforce California law.
And keep in mind, too, that the reclassification of porn performers as "employees" of the production companies they shoot for is the fundamental foundation of the proposed Cal-OSHA "barrier protection" regs, too.  Small wonder that Mike Weinstein of AHF was so aggressive in upgrading the punishments here, too.

And, as Michael points out, this may only be the beginning for porn companies in complying with workplace protection laws:
It is this author’s opinion that Manwin is starting to realize that the performers are indeed employees and are taking steps to comply with California law. Obviously, they are trying to set a precedent with the reimbursement of testing costs, however they still fall short of actual compliance with Labor Code section 222.5. Since the “Performer Subsidy Fund” requires a performer to sign up for the program instead of Manwin paying for the pre-employment testing outright.

None-the-less, Manwin is taking a step in the right direction when it comes to the treatment of performers, however, it is only a half step. At some point all production companies will have to address not only peformers’ testing costs but also the issue of workers’ compensation for on-set injuries.
Of course, the issue of whether or not performers can be compelled to be reclassified as "employers" or "independent contractors" (or both) will probably be hashed out in front of judges as the condom mandate laws and the proposed Cal-OSHA regs face their legal challenges.

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